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U. S. SECURITIES AND EXCHANGE COMMISSION
Securities Exchange Act of 1934
Release No. 36641 / December 27, 1995
Accounting and Auditing Enforcement
Release No. 742 / December 27, 1995
IN THE MATTER OF DAVID SIMS AND LOUIS KURTZ
The Commission has ordered the institution of a public
administrative proceeding pursuant to Section 21C of the
Securities Exchange Act of 1934 ("Exchange Act") against David
Sims ("Sims") and Louis Kurtz ("Kurtz"). The Order alleges that
Sims and Kurtz, respectively as President and Chief Financial
Officer of Everlast Filtration Corp. ("Everlast"), violated, or
caused to be violated, the registration provisions, Section
12(g), reporting provisions, Section 13(a), record-keeping
provisions, Section 13(b)(2)(A) and the internal control
provisions, Section 13(b)(2)(B) of the Exchange Act and Rules
12b-20, 13a-1, 13a-11 and 13a-13 thereunder, when they caused
Everlast to overstate its reported assets by as much as 478% by
materially over valuing certain patents and land.
The Order alleges that in a Form 10 filed in 1990 (the "Form
10"), a December 31, 1990 Form 10-K (the "Form 10-K"), and in
three 1991 Forms 10-Q (the "Forms 10-Q"), Sims and Kurtz caused
Everlast to report as assets certain oil filtration patents at an
approximate $4 million value. The Order further alleges that
Sims and Kurtz understood, at the time, that: (a) Everlast had
obtained a 75% interest in the patents, in exchange for stock,
from an entity under Sims' control; (b) the Sims controlled
entity had acquired the 75% interest in the patents at no cost;
and (c) Everlast acquired the remaining 25% interest from a third
party in exchange for a $250,000 note payable. In such
instances, Generally Accepted Accounting Principles ("GAAP")
required that Everlast's 75% interest should be valued at zero.
As a result, the Order alleges that in its Form 10, the Form 10-K
and Forms 10-Q, Sims and Kurtz caused Everlast to overstate the
reported value of the patents by at least $3,750,000
The Order also alleges that in the Form 10-K and the Forms
10-Q, Sims and Kurtz also caused Everlast to report the value of
land in Branson, Missouri (the "Branson Property") at $106
million. Everlast had acquired the Branson Property in exchange
for preferred stock. GAAP required that Everlast record the
property at its fair value, which, the Order alleges, was
materially less than Everlast reported. According to the Order's
allegations, at the time, Sims and Kurtz understood, among other
things, that: (a) the seller of the Branson Property had
originally placed a $17.9 million value on the property; (b) the
preferred stock that Everlast exchanged for the property had
little or no value; (c) for about one third of the Branson
Property, Everlast owned only an option to acquire and that for
$650,000; (d) an appraisal Everlast used to value the Branson
Property was prepared for former owners of the property based on
assumptions not appropriate to Everlast; and (e) prior to the
Form 10-K, the Commission staff had emphatically told Everlast
that the $106 million value was not acceptable. The Order
alleges that, nevertheless, Sims and Kurtz caused Everlast to
report the $106 million value.
Subsequently, in a 1992 Form 8-K, Everlast reported that it
had traded the Branson Property for a 30% interest in a
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partnership newly created to develop the Branson Property. In
the Form 8-K, Everlast valued its 30% partnership interest at
$29.6 million. Sims and Kurtz, as alleged above, had information
showing that its 30% interest in the partnership was materially
overstated.